Carey Glass U.C. and Another v Unite the Union
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Nolan |
| Judgment Date | 23 November 2023 |
| Neutral Citation | [2023] IEHC 705 |
| Court | High Court |
| Docket Number | Record No. 2023 / 4057 P |
[2023] IEHC 705
Record No. 2023 / 4057 P
THE HIGH COURT
Picketing – Prohibitory orders – Industrial Relations Act 1990 – Plaintiffs seeking prohibitory orders to prevent the defendant from carrying out unlawful picketing at their premises – Whether there was a serious issue to be tried
Facts: The plaintiffs, Carey Glass U.C. and Carey Glass Holdings U.C., applied to the High Court seeking various prohibitory orders to prevent the defendant, Unite the Union, from carrying out what they described as unlawful picketing at their premises at Limerick Rd, Nenagh, Co. Tipperary. They submitted that industrial disputes are governed in Ireland by the Industrial Relations Act 1990. In regard to picketing, they pointed out that s. 11 allows for peaceful picketing; that section also provides for secondary picketing in connection with a trade dispute in certain limited circumstances. They argued that the provisions of the 1990 Act do not apply to trade disputes outside of the jurisdiction. In particular, they said that the court must presume that, unless specifically identified in very limited circumstances, legislation is not intended to have extra territorial effect; therefore, there is no statutory protection which can justify secondary picketing in those circumstances. They said that what took place on the three occasions was picketing as opposed to protesting, as argued by the defendant. They cited various authorities as to the definition of picketing and in particular Esplanade Pharmacy Limited v Larkin and others [1957] IR 285, where the Supreme Court stated that picketing is clearly unlawful and constitutes a watching and the setting of the premises, unless it is justified by the provisions of the Trade Disputes Act 1906, the forerunner of the 1990 Act. As regards the test to be applied when seeking introductory injunctive relief, they argued that they had established a fair issue to be tried and that even if the higher threshold applied, they had established a serious issue to be tried: the attendance at the their premises was an unlawful attendance. Further, they submitted that the picketing by the defendant’s members was having a detrimental impact upon the business of the plaintiffs and was likely to have a detrimental impact upon good industrial relations between the plaintiffs and their employees; on that basis, the balance of convenience favoured the court granting the relief sought.
Held by Nolan J that the trade dispute in question was not in Ireland’s jurisdiction; therefore, it was not a trade dispute covered by the 1990 Act. Based on the evidence before him, he held that the defendant was picketing not protesting, they were picketing in furtherance of a trade dispute at a premises which was not that of their employer and that trade dispute was outside the jurisdiction. In those circumstances, he held that the picketing was not lawful. He held that there was a serious issue to be tried regarding the activities of the defendant on the three occasions they attended at the plaintiffs’ premises. He adopted the ‘serious issue to be tried’ threshold as enunciated by O’Donnell J in Merck Sharp & Dohme. Nolan J did not believe that granting an interlocutory injunction would in any way prohibit the full hearing of the case. As far as the balance of convenience was concerned, he held that it clearly rested with the plaintiff, since the case was not determined and would go to trial, unless the defendants decided that it was not in their interest to proceed or appeal the judgment. However, he held that if they were not prohibited by an order of the court, they may well continue to attend at the plaintiffs’ premises with the potential of incalculable loss to the plaintiffs’ name, their reputation, their standing in the local community, and their relationship with employees, customers and suppliers. He did not think that damages were an adequate remedy in circumstances where the reputational loss was incalculable.
Nolan J held that the plaintiffs had persuaded him that they were entitled to the orders that they sought.
Application granted.
Ex-Temp Judgment of Mr. Justice David Nolan delivered on the 23 rd November 2023:
This is an application brought by the plaintiffs seeking various prohibitory orders to prevent the defendant carrying out, what the plaintiffs have described as unlawful picketing at the plaintiffs' premises at Limerick Rd, Nenagh, Co. Tipperary. The defendant is a registered union operating in Ireland, Northern Ireland and in the rest of the UK.
The plaintiffs in this action are manufacturers and suppliers of glass products. The first named plaintiff operates a glass manufacturing plant at its premises at Limerick Road, Nenagh, Co. Tipperary. The second plaintiff is a wholly owned subsidiary of the first named plaintiff and is also the owner of a business in Northern Ireland known as Vista Therm Ltd, having its place of business at Silverwood Business Park Lurgan, Craigavon, Co. Armagh. It too is involved in the business of manufacturing and selling glass products.
In July of this year, the union in Northern Ireland balloted its members to seek authority to take strike action against its employer Vesta Therm. On 7 th July 2023, Neil Moore, a regional officer of the defendant, wrote to Rachael Moriarty, the H.R. manager in Vista Therm at the Lurgan premises, giving notice of the industrial action.
By letter dated 27 th July 2023, Mr Moore wrote to William Carey, CEO of Carey Glass, at its Nenagh premises, asking him to intervene and put an end to a dispute between the members of his unit and Vista Therm.
The first time the plaintiffs heard that there may be a demonstration outside their premises was when they were notified through the local media. Tipperary Live carried a report that workers at the Lurgan facility would be travelling to Nenagh the following day, Wednesday the 16 th of July 2023 at a time between 1:30 PM and 3:30 PM to hand in a letter urging the company to intervene with local management in Lurgan to resolve the ongoing industrial dispute. The article went on to quote Mr Moore saying that Vista Therm's ultimate parent company was Carey Glass, which engages collectively with its workforce through a union. The purpose of the trip was to “step up to the plate and intervene to ensure that the Lurgan workers which generation (sic) Vesta firm's massive profits are treated with respect they deserve”.
By letter dated 15 th August 2023, solicitors for the plaintiff's wrote to the defendant at its Dublin office, noting that the union intended to picket the company's premises at Nenagh, Co. Tipperary. It went on to say that it would appear to be the case that the proposed picket would be unlawful. The employees involved in the trade dispute were employees of a different legal entity in a different jurisdiction. It pointed out that as far as the company was aware, it did not employ any members of the union.
It noted that limited provisions of the Industrial Relations Act 1990 (the 1990 Act) permitted secondary picketing in certain circumstances, but only if there was primary picketing within the State, and only if an employer was directly assisting the employer to the trade dispute for the purpose of frustrating the strike or other industrial action. Carey Glass had provided no such assistance. Rather, it requested a written undertaking to confirm that members of the union would not attend the premises at Nenagh. It added that if it didn't receive such an undertaking then, injunctive relief would be sought.
In what seems to me to be an important letter, Neil Gillam of the United Legal department wrote to the plaintiff's solicitors stating that the media reports were inaccurate. He went on to say as follows:
“Contrary to any inaccurate media reporting, our members intend to visit the premises of your client and hand deliver a letter for the attention of your client, seeking their intervention in an ongoing lawful trade dispute.
There is no intention to picket the premises nor seek to persuade any persons, whether employees of your client or otherwise, from either working or abstaining from work.
The provisions of the industrial relations act 1990 are not engaged in the circumstances and respectfully the rights guaranteed under the Constitution and the European Convention of human rights are more likely so.
Whilst we note your concerns, we believe these to be misplaced and your request for an undertaking will not be complied”.
On the same day, solicitors for the plaintiff responded pointing out that the union's members had no entitlement to attend the plaintiff's premises and that if they did so they would be trespassing. Again, they requested a written undertaking that the members would not attend the plaintiff's premises. No further response was received.
On the 16 th of August 2023, members of the defendant attended the premises and hand delivered a letter, signed by Mr Moore. It is headed “ request for you to intervene in dispute between Vista Therm and unite”. The letter was addressed to Mr Jim Carey, CEO of Carey Glass. The letter goes on to deal with the dispute in the Vista Therm facility in Lurgan and, that notwithstanding a previous collective agreement between the parties, in the North of Ireland, the local management had refused to negotiate with workers through their union. The letter concluded by pointing out that the plaintiffs' recognised a union for collective bargaining purposes and says: ‘ we feel sure you will agree workers at your subsidiary Vesta Therm should also be able to negotiate the terms and conditions collectively’. It concluded by asking Mr Carey to intervene with the local Vista Therm...
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